ELECTION CONTESTS Ch. 9 § 12 for bringing election contests, and votes in proportion to the Repub- in part on the failure to avail lican votes that were given in themselves of the legal steps to these precincts.’’ The offering of challenge alleged discrimination such prizes was acknowledged by prior to the elections. the contestee on the floor of the The Committee report did state, House during debate. The com- however, that in arriving at such mittee found that this offering of conclusions, the committee did not prizes was not a violation of 2 condone disenfranchisement of USC § 150, which made it unlaw- voters in the 1964 or previous ful ‘‘for any person to make or election, nor was a precedent offer to make an expenditure . . . being established to the effect that either to vote or withhold [a] vote the House would not take action, or to vote for or against any can- in the future, to vacate seats of didate....’’ sitting Members. It noted that the Federal Voting Rights Act of 1965 had been enacted in the interim and that if evidence of its viola- tion were presented to the House § 12. Voting Booth and in the future, appropriate action Balloting Irregularities would be taken. As a basis for contesting an ‘‘Prizes’’ to Campaign Workers election, a wide variety of charges have been made in election con- § 11.4 A contestee’s offer of tests with respect to use of voting prizes to his precinct cap- booths and voting machines and tains has been found by an equipment. Similarly, alleged im- elections committee not to be proprieties in balloting are fre- a violation of that section of quently cited as a reason for over- the Corrupt Practices Act turning the result of an election. prohibiting expenditures to influence votes. In McAndrews v Britten (§ Voter Confusion as Excuse for 47.12, infra), a 1934 Illinois con- Official’s Entering Booth test, the contestant had alleged in his notice of contest that the § 12.1 In determining whether contestee had ‘‘offered prizes to an election official, in enter- the various precinct captains ing a voting booth and con- whose precincts voted the largest versing with voters, was act- 1013 Ch. 9 § 12 DESCHLER’S PRECEDENTS

ing fraudulently and in con- there was no evidence whatsoever spiracy with a candidate, the connecting the contestee there- elections committee may con- with, and the committee rec- sider the extent to which ommended that he be seated. there existed voter confusion as to the proposition on the § 12.3 Where votes are cast by ballot or in the operation of persons not qualified to vote, voting machines. being only temporarily in the district, such votes are con- In Gormley v Goss (§ 47.9, sidered invalid. infra), a 1934 Connecticut contest, contestant failed to establish that In Swanson v Harrington an election official’s actions in en- (§ 50.4, infra), a 1940 Iowa con- tering a booth and talking to vot- test, contestant claimed that 70 of ers were fraudulent and conspira- the 528 votes cast in a certain torial. The committee noted that precinct were illegal as they were there existed voter confusion as to cast by Works Progress Adminis- the placement of a proposition on tration workers only temporarily the ballot and that there were no in the district; the committee complaints of interference with ruled, however, that while such voter intent. votes were illegal and could be disregarded, they would not affect Balloting irregularities the outcome of the election. § 12.2 A committee finding of § 12.4 An allegation that evidence of irregularities in contestee had received a dis- the conduct of an election proportionately large num- will not provide a sufficient ber of ‘‘split votes’’ must be basis for overturning that supported by the evidence. election where there is no In McAndrews v Britten evidence connecting contes- (§ 47.12, infra), a 1934 Illinois con- tee with such irregularities. test, contestant alleged that In Miller v Cooper (§ 48.3, contestee had received a ‘‘split infra), a 1936 Ohio contest, the vote’’ so disproportionately large Committee on Elections found evi- as compared to the ‘‘straight tick- dence of irregularities in the de- et votes’’ that a presumption of struction of ballots, tabulations of fraud followed. This allegation votes cast, and in the method of was rejected as not supported by conducting the election. However, the evidence, the testimony of an 1014 ELECTION CONTESTS Ch. 9 § 12 expert being regarded as ‘‘frail not validate ballots that are and unconvincing’’; it appeared marked for ‘‘straight ticket’’ that a large split vote had been and, in addition, for a local the case for many members of ‘‘wet party’’ ticket, the latter contestee’s political party, as they being adjacent to a column had to have ‘‘run ahead of the permitting a vote for repeal ticket’’ to have been elected. of the 18th amendment, in the absence of evidence that § 12.5 An elections committee such voters intended to vote will not presume ballots for repeal and mistakenly marked for the Presidential voted for two ‘‘straight tick- nominee of contestant’s ets.’’ party to have been intended as ‘‘straight ticket’’ votes In Fox v Higgins (§ 47.8, infra), where the state law provides a 1934 Connecticut contest, the for a separate circle for cast- Committee on Elections, while ing ‘‘straight ticket’’ ballots. conceding the probability of some voter confusion, found that the In Ellis v Thurston (§ 47.6, juxtaposition of the ‘‘wet party’’ infra), an election contest origi- entry with the column relating to nating in the 1934 Iowa election, the repeal of the 18th amend- the contestant argued that on a ment, had been arranged in the number of ballots on which the customary way by a competent voters had marked the squares state elections official. opposite the Presidential and Vice Presidential candidates but which § 12.7 Statutory violations by indicated no choice for Represent- voters in failing to comply ative, the voters had intended to with state absentee voting vote a straight party ticket. The laws were held sufficient to committee ruled against this con- invalidate the ballots cast. tention, however, noting that the state statute provided that a cross In the 1958 Maine contested be placed in a separate party cir- election case of Oliver v Hale cle in order to cast a straight (§ 57.3, infra), arising from the party ticket. Sept. 10, 1956, election, the report of the Committee on House Ad- § 12.6 Where state law voids ministration listed nine areas ballots cast for more than stressed by the contestant in one ‘‘straight party’’ ticket, which there had been a failure on an elections committee will the part of the voter to comply 1015 Ch. 9 § 12 DESCHLER’S PRECEDENTS with the absentee voting laws of § 12.8 Where state law re- Maine: application for absentee or quired alternation of names physical incapacity ballot not of all candidates on ballots signed by the voter; application so that each name appeared for physical incapacity ballot not an equal number of times at certified by physician; envelope the beginning, end, and at in- not notarized; no signature of termediate places thereon, voter on envelope; jurat not in failure to comply with the re- form as prescribed by statute; quirement did not result in name of voter and official giving overturning the election. the oath are the same; variance in In the 1951 Ohio contested elec- writing between signature on ap- tion case of Huber v Ayres (§ 56.1, plication and signature on enve- infra), a newly adopted state con- lope; failure of voter to specify on envelope his reason for absentee stitutional provision required al- voting; and voter not properly reg- ternation of the candidates’ names istered or qualified to vote. an equal number of times in var- The committee concluded that ious positions on the ballot. How- there were 109 instances where ever, the majority recommended, the voter failed to substantially and the House agreed to, a resolu- comply with the elect on laws, tion dismissing the contest on the leading to rejection of the ballots basis that the remedy under state as compliance was mandatory. law had not been exhausted.

D. DEFENSES § 13. Generally tion: insufficiency of service of no- tice of contest; lack of standing of Under the new Federal Con- the contestant; failure of the no- tested Elections Act (2 USC tice of contest to state grounds §§ 381–396), the contestee may, sufficient to change the result of prior to answering the contest- the election; and failure of the ant’s notice of contest, make the following defenses by motion contestant to claim right to the served on the contestant and such contestee’s seat [see 2 USC motions may form the basis of a § 383(b)]. These statutory defenses motion to dismiss made before the are supplemental to those de- Committee on House Administra- scribed in the precedents below. 1016